Harper v. United States ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Darrell J. Harper, )
)
Plaintiff, )
) Case: 1:15—cv-O1172
v. ) Assigned To : Unassigned
) Assign. Date : 7/21/2015
United States of America, ) Description: Pro Se Gen, Civil
)
Defendant. )
MEMORANDUM OPINION
This matter is before the Court on its initial review of plaintiffs pro se complaint and
application to proceed in forma pauperis. The Court will grant plaintiff’s application and
dismiss the complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3)
(requiring the court to dismiss an action “at any time” it determines that subject matter
jurisdiction is wanting).
Plaintiff is a Texas state prisoner incarcerated in Huntsville, Texas. He purports to sue
the United States under Bivens v. Six Unknown Named Agents, 403 US. 388 (1971), which
authorizes a private cause of action against federal officials for violating constitutional rights.
Plaintiff demands $100 million in monetary damages.
Since plaintiff has not named an individual defendant, his Bivens claim fails as a matter
of law. See Ashcroft v. Iqbal, 556 US. 662, 676 (2009) (In a Bivens lawsuit, “a plaintiff must
plead that each Govemment-official defendant, through the official's own individual actions, has
violated the Constitution”). Regardless, under the doctrine of sovereign immunity, the United
States is subject to suit only upon consent, which must be clear and unequivocal. United States v.
1
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Mitchell, 445 US. 535, 538 (1980) (citation omitted); see Lane v. Pena, 518 US. 187, 192
(1996) (the United States may be sued only upon consent “unequivocally expressed in statutory
text[.]”). The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671—80, provides a
limited waiver of the sovereign’s immunity for money damages “under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” Id., § l346(b)(l). The United States has not
consented to be sued for constitutional violations. See FDIC v. Meyer, 510 US. 471, 476-78
(1994).
To the extent that plaintiff is suing for “negligent supervision,” Compl. at 1, jurisdiction
is wanting because plaintiff has not indicated that he has exhausted his administrative remedies
by "first present[ing] the claim to the appropriate Federal agency. . . .," 28 U.S.C. § 2675, and
this exhaustion requirement is jurisdictional. See Abdurrahman v. Engstrom, 168 Fed.Appx.
445, 445 (DC. Cir. 2005) (per curiam) (affirming the district court’s dismissal of unexhausted
FTCA claim “for lack of subject matter jurisdiction”); accord Simpkins v. District of Columbia
Gov ’t, 108 F.3d 366, 371 (DC. Cir. 2007). Hence, this case will be dismissed. A separate Order
nited State ' tric Judge
accompanies this Memorandum Opinion.
,/
DATE: July [5 ,2015